Great Western Bank v. LJC Development, LLC ( 2015 )

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
GREAT WESTERN BANK, a bank chartered under the laws of the State of
South Dakota, successor-in-interest to the loans of TierOne Bank, a
federally chartered savings bank, by acquisition of assets from the FDIC,
as Receiver of TierOne Bank, which was closed by the Office of Thrift
Supervisor on June 4, 2010, Plaintiff/Appellant,
v.
LJC DEVELOPMENT, LLC, an Arizona limited liability company; JAMES
LEO CROWLEY and JANE DOE CROWLEY, husband and wife; JOHN
CROWLEY and JENNI CROWLEY, husband and wife,
Defendants/Appellees.
No. 1 CA-CV 14-0252
FILED 11-10-2015
Appeal from the Superior Court in Maricopa County
No. CV2009-032530
The Honorable Katherine M. Cooper, Judge
AFFIRMED
COUNSEL
Quarles & Brady LLP, Phoenix
By William Scott Jenkins, Jr., Alissa A. Brice
Counsel for Plaintiff/Appellant
Aspey Watkins & Diesel, PLLC, Flagstaff
By Whitney Cunningham, Jennifer M. Mott
Counsel for Defendants/Appellees
GREAT WESTERN v. LJC, et al.
Opinion of the Court
OPINION
Presiding Judge Kenton D. Jones delivered the opinion of the Court, in
which Judge Randall M. Howe and Judge Peter B. Swann joined.
J O N E S, Judge:
¶1 Great Western Bank (Great Western) appeals a judgment
entered in favor of Appellees on its claim and counterclaim following a
bench trial. For the following reasons, we affirm.
FACTS1 AND PROCEDURAL HISTORY
¶2 This appeal arises from two construction loan agreements
between Great Western’s predecessor2 and Cedar Ridge Investments,
L.L.C. (Borrower). Appellees are the guarantors of Borrower.
¶3 In early 2007, Borrower sought funding to develop a fifty-
home subdivision in Flagstaff to be known as Cedar Ridge. Borrower first
obtained a loan from Great Western to acquire and develop infrastructure
(the A&D Loan) in May 2007. Appellees agreed to guarantee the A&D Loan
in an amount up to but not exceeding Borrower’s total principal
indebtedness to Great Western. In January 2008, Borrower entered into a
second agreement with Great Western to fund the actual construction of
homes (the Agreement). The Agreement required Appellees to execute a
guaranty separate from that securing the A&D Loan and was signed by
eight bank officials. By its terms, the Agreement expired on December 1,
2008.
1 We view the facts in the light most favorable to upholding the trial
court’s judgment. Bennett v. Baxter Grp., Inc., 223 Ariz. 414, 417, ¶ 2 (App.
2010) (citing Sabino Town & Country Estates Ass’n v. Carr, 186 Ariz. 146, 148
(App. 1996)).
2 Great Western’s predecessor in interest, TierOne Bank, was closed
by the Office of Thrift Supervision and its interest in the loan and litigation
was purchased from the FDIC by Great Western in June 2010. For ease of
reference, we refer to both Great Western and its predecessor in interest as
Great Western.
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GREAT WESTERN v. LJC, et al.
Opinion of the Court
¶4 In July 2008, as acquisition and development of the
infrastructure was nearing completion and Borrower was preparing to
obtain permits for the construction of model homes, Great Western made
an internal decision to cease construction financing in Arizona and advised
Borrower it was withdrawing from the Agreement. When notified of this
decision, Borrower immediately expressed to Great Western its concern
regarding the continued viability of the project without the financing
agreement in place, slowed construction in an effort to save money, and
attempted to secure alternate financing. Borrower’s efforts were ultimately
unsuccessful, and without financing to build model homes, Borrower could
not sell homes in Cedar Ridge and was therefore unable to generate revenue
through which to service the A&D Loan.
¶5 Great Western then foreclosed on the A&D Loan, sold the
property to another developer, and sued Appellees for the balance of
approximately $2.6 million.3 Appellees conceded they, as guarantors, failed
to repay the A&D Loan but sought offset and affirmative relief for profits
Borrower lost as a result of Great Western’s termination of the Agreement,
which they contend constituted anticipatory repudiation and breach of the
implied covenant of good faith and fair dealing. The case proceeded to trial
for determination of the merit and value, if any, of Appellees’ claims and
counterclaims which might offset the deficiency owed to Great Western.
Great Western submitted a timely request for findings of fact and
conclusions of law.
¶6 At trial, Great Western argued it was not required under the
Agreement to actually finance construction within Cedar Ridge, asserting
the Agreement was merely a “guidance line” or an outline of proposed
future loans, and Great Western retained complete discretion to decline
funding. The trial court disagreed, noting the Agreement was titled “Loan
Agreement,” contained express language obligating Great Western to
“make the Loans to Borrower,” and required Borrower to “accept such
Loans,” subject to various terms and conditions. And, according to the
Agreement’s terms, the only basis upon which Great Western was entitled
to withdraw its participation was Borrower’s default — an event never
alleged by Great Western.
3 Although they are named in the caption, John and Jenni Crowley
sought bankruptcy protection during the litigation and are not parties to
this appeal.
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GREAT WESTERN v. LJC, et al.
Opinion of the Court
¶7 The trial court concluded Great Western breached the
Agreement by unilaterally terminating its obligation to extend financing
without conducting case-by-case review of individual loan requests. The
court determined Great Western’s breach had prevented Borrower from
receiving the benefit of the contract — namely, financing it required to build
and market homes within Cedar Ridge, which would have, in turn,
provided Borrower revenues through which it would be able to repay the
A&D Loan. The court found Great Western had no valid excuse for doing
so because Borrower had the ability to begin construction and was not in
default of the Agreement. Finally, the court determined Borrower had
proven with reasonable certainty it would have profited between $2,808,000
and $3,500,000 had Great Western not terminated the Agreement. Because
the lost profits exceeded the outstanding balance on the A&D Loan, the
court found Appellees’ liability under the guaranty was reduced to zero.
The trial court determined Appellees were the prevailing parties, having
“effectively recovered $3.1 million, absolving them of their liability” to
Great Western, and awarded Appellees their attorneys’ fees and double
their taxable costs pursuant to Arizona Revised Statutes (A.R.S.) sections
12-3414 and -341.01 and Arizona Rules of Civil Procedure 54(f) and 68.
¶8 The trial court denied Great Western’s motions to amend the
findings of fact and conclusions of law and for reconsideration. Great
Western timely appealed. We have jurisdiction pursuant to A.R.S. §§ 12-
120.21(A)(1) and -2101(A)(1).
DISCUSSION
I. Interpretation of the Agreement
¶9 In its opening brief, Great Western characterizes the
Agreement as “an agreement between Borrower and [Great Western] under
which Borrower could request loans after satisfying certain terms and
conditions, and subject to an individual case-by-case review by [Great
Western].” Upon this premise, Great Western argues the trial court erred
in concluding that “[b]y entering into the [Agreement], [Great Western]
agreed to make loans, on a case-by-case basis, provided Borrower complied
with the terms and conditions set forth [there]in,” re-advancing its theory
that the documents were simply an “outline” for future financing. The
interpretation of a contract is a question of law which we review de novo.
Colo. Cas. Ins. v. Safety Control, 230 Ariz. 560, 565, ¶ 7 (App. 2012) (citing
4 Absent material revisions from the relevant date, we cite a statute’s
current version.
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GREAT WESTERN v. LJC, et al.
Opinion of the Court
Grubb & Ellis Mgmt. Servs., Inc. v. 407417 B.C., L.L.C., 213 Ariz. 83, 86, ¶ 12
(App. 2006)). In doing so, our primary purpose is to discover and enforce
the parties’ intent at the time the contract was made, Taylor v. State Farm
Mut. Auto. Ins., 175 Ariz. 148, 152 (1993), looking first to “‘the plain meaning
of the words as viewed in the context of the contract as a whole,’” ELM
Retirement Ctr., L.P. v. Callaway, 226 Ariz. 287, 290-91, ¶ 15 (App. 2010)
(quoting United Cal. Bank v. Prudential Ins., 140 Ariz. 238, 259 (App. 1983)).
¶10 Setting aside that Great Western’s own description of the
purpose of the Agreement is nearly identical to the trial court’s finding, we
find no error. Although Great Western refers to the Agreement as a
“guidance line,” these words have no legal significance and appear
nowhere within the provisions of the Agreement. The contract itself is
specifically titled “Loan Agreement.”
¶11 Great Western’s internal communications and writings to
Borrower refer to the Agreement inconsistently as a “commitment,” a “line
of credit,” a “guidance line of credit,” and a “loan agreement.” However,
in correspondence to Borrower dated the day prior to the execution of the
Agreement, Great Western explained the term “guidance line,” stating:
The line of credit that has been approved is a “guidance line,”
which is an indication of the maximum allowable amount of
loans outstanding that you may have with [Great Western]
during the term of the guidance line. Even though this is a
commitment, each individual housing start and lot purchase
is subject to [Great Western]’s individual case-by-case
approval. . . . The guidance line amount is $3,600,000.00.
Marlin Hupka, a vice president of both Great Western and its predecessor,
provided the same explanation at trial.
¶12 Great Western’s explanation is inconsistent with the actual
terms of the Agreement, which identifies Great Western as “Lender” and
begins with an “Agreement to Make and Take Loan,” stating:
Subject to the terms and conditions set forth in this
Agreement, Lender agrees to make the Loans to Borrower, each
such Loan to be used by Borrower for the acquisition of a Lot
and for subsequent construction by Borrower of
Improvements thereon, and Borrower agrees to accept such
Loans from Lender as hereinafter described.
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GREAT WESTERN v. LJC, et al.
Opinion of the Court
(Emphasis added). The Agreement continues: “Lender will, from time to
time, make Lot Specific Advances to Borrower under the Loan for the
purchase of the Related Lot and construction of Improvements thereon.”
(Emphasis added). It was only after Great Western withdrew from the
Agreement that it informed Borrower it considered the Agreement an
“uncommitted credit facility” or described the Agreement as “not a
commitment” but “a set of terms” by which to make future loans. To accept
this explanation would render the language within the “Agreement to
Make and Take Loan” meaningless. We decline to adopt such a
construction. See ELM Retirement, 226 Ariz. at 291 (“In interpreting a
contract, we do not construe one term in a way that renders another
meaningless.”).
¶13 Great Western relies upon language within the Agreement
that “[t]he Loans are not a line of credit” and each lot-specific loan “is
subject to Lender’s individual, case-by-case approval and Borrower’s
satisfaction of all terms and conditions contained in this Agreement with
respect thereto.” These statements are not, however, dispositive of the issue
before us because, within the Agreement, “Loans” is defined as “one or
more of the Loans which Lender agrees to make to Borrower pursuant to this
Agreement.” (Emphasis added). The Agreement thus states only that the
lot-specific loans were not a line of credit; it is silent as to whether the
financing structure contemplated by the Agreement as a whole operated as
a line of credit. The existence of a defined maximum amount which the
Borrower could request certainly suggests otherwise.5
¶14 By requiring Borrower to follow a specified procedure and
furnish additional information to obtain each lot-specific loan, the lending
arrangement is distinguished from a traditional line of credit where a
certain sum is available to the borrower as he deems appropriate without
any further explanation to the lender or qualification by the borrower. But
the fact that individual loans were “subject to the terms and conditions” set
forth within the Agreement does not change Great Western’s express
agreement to “make loans” to Borrower upon its compliance with those
terms, particularly in light of the agreed upon purpose of the arrangement
“to insure that a lender will be available for construction financing.”
Additionally, that approval of individual lot-specific loans could be given
without further input from the full lending committee, who had already
signed off on the Agreement, suggests the process to obtain a lot-specific
5 A “line of credit” is “[t]he maximum amount of borrowing power
extended to a borrower by a given lender, to be drawn on by the borrower
as needed.” Black’s Law Dictionary (10th ed. 2014).
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GREAT WESTERN v. LJC, et al.
Opinion of the Court
loan was more ministerial than substantive. Effectively, the Agreement was
as much a loan agreement, i.e., a contract binding its signatories to the
lending and borrowing of money, as any loan agreement ever written,
notwithstanding Borrower’s obligation to provide certain information to
Great Western before it could make a draw.
¶15 Great Western argues that, as a matter of public policy,
affirming the trial court’s ruling “would discourage lenders from offering
uncommitted loan facilities such as the Guidance Line, for fear that
exercising their discretion to withdraw the same will result in a judgment
against them.” We are not persuaded that a sophisticated financial
institution capable of lending monies on a scale allowing for the
construction of residential subdivisions would be incapable of drafting a
document evidencing an uncommitted loan facility in a manner that clearly
and accurately describes the rights and obligations of the parties involved
if it so intended. And if, as here, the financial institution introduces the
term “guidance line” into the transaction, defines the term as a “line of
credit” and “a commitment,” and subsequently executes a “loan
agreement” to memorialize the parties’ rights and obligations, we find no
offense in holding the financial institution to the terms of those instruments.
¶16 Further, to accept Great Western’s position would place the
court’s imprimatur upon what has commonly been deemed an illusory
contract. “[T]o agree to do something and to reserve the right to terminate
the agreement at will is no agreement at all” — executory or otherwise.
Shattuck v. Precision-Toyota, Inc., 115 Ariz. 586, 588 (1977) (“[A]n illusory
contract is unenforceable for lack of mutuality. . . . [A] contract must have
mutuality of obligation, and an agreement which permits one party to
withdraw at his pleasure is void.”) (internal quotations omitted).
¶17 Here, both the language of the Agreement and its context
reflect the parties’ intent that it would operate, effectively, as a line of credit,
subject to certain limitations and preconditions. We agree with Great
Western that it was not committed to grant any particular request for a lot-
specific loan; however, Great Western agreed to be available and was
required under the terms of the Agreement to at least consider Borrower’s
requests on a case-by-case basis. As discussed below, the trial court acted
well within its discretion in finding Great Western breached the Agreement
by refusing to honor these terms.
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GREAT WESTERN v. LJC, et al.
Opinion of the Court
II. Viability of Claim for Breach of the Implied Covenant of Good
Faith and Fair Dealing
¶18 Great Western next argues Appellees’ claim for breach of the
implied covenant of good faith and fair dealing is barred as a matter of law
because it “relies on a promise to lend money not evidenced in writing,” and
therefore violates Arizona’s statute of frauds and federal law. The
application of statutes presents a question of law which we review de novo.
See Gomez v. Maricopa Cnty., 175 Ariz. 469, 471 (App. 1993) (citing Gary
Outdoor Advert. Co. v. Sun Lodge, Inc., 133 Ariz. 240, 242 (1982)).
¶19 Arizona’s statute of frauds provides:
No action shall be brought in any court in the following cases
unless the promise or agreement upon which the action is
brought, or some memorandum thereof, is in writing and
signed by the party to be charged . . . Upon a contract,
promise, undertaking or commitment to loan money or to
grant or extend credit . . . involving both an amount greater
than two hundred fifty thousand dollars and not made or
extended primarily for personal, family or household
purposes.
A.R.S. § 44-101(9). Great Western also asserts the D’Oench doctrine likewise
prohibits a borrower from asserting defenses or claims against a failed bank
based upon unwritten agreements.6 See 12 U.S.C. § 1823(e)(1); Adams, 187
Ariz. at 589-90 (citing D’Oench, 315 U.S. at 457, and Resolution Trust Corp. v.
Foust, 177 Ariz. 507, 517 (App. 1993)).
¶20 Great Western’s reliance upon this authority is misplaced and
appears to arise from its mischaracterization of the Agreement and the
nature of the underlying claim. Here, the claim for breach of the implied
covenant of good faith and fair dealing is premised upon Great Western’s
6 The D’Oench doctrine is a form of estoppel designed to protect the
FDIC from fraudulent practices by “enabl[ing it] to enforce agreements
between failed banks and their borrowers in strict accordance with the
terms of the loan documents,” and not an unwritten “secret agreement”
between the borrower and a representative of a defunct financial
institution. FDIC v. Adams, 187 Ariz. 585, 590 (App. 1996) (citing D’Oench,
Duhme & Co. v. FDIC, 315 U.S. 447, 459-62 (1942)).
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GREAT WESTERN v. LJC, et al.
Opinion of the Court
withdrawal from the Agreement, which is clearly evidenced in writing. As
alleged here, it is not a tort claim7 and is not based upon any oral or “secret”
arrangement to extend the contract past its natural expiration of December
2008. Therefore, neither the statute of frauds, nor the D’Oench doctrine, has
any application.
¶21 The covenant of good faith and fair dealing is implied in every
contract, including the Agreement at issue here, and can be breached even
where the express terms are not violated. Wells Fargo, 201 Ariz. at 490, ¶ 59;
Bike Fashion Corp. v. Kramer, 202 Ariz. 420, 424, ¶ 17 (App. 2002). Here,
Appellees properly alleged Great Western acted in a manner that denied
Borrower the reasonably anticipated benefit of the Agreement, see Bike
Fashion, 202 Ariz. at 424-25, ¶¶ 17-18, when it unilaterally withdrew from
that agreement, and Appellees were properly permitted to proceed upon
that theory.8
III. Evaluation of the Evidence
¶22 The remainder of Great Western’s arguments concern the
sufficiency of evidence to support the findings of fact upon which the trial
court’s conclusions are based. We review the trial court’s findings of fact
for an abuse of discretion. Myers v. W. Realty & Constr., Inc., 130 Ariz. 274,
277 (App. 1981) (citing Lawrence v. Valley Nat’l Bank, 12 Ariz. App. 51, 57
7 Arizona recognizes a tort claim for breach of the implied covenant of
good faith and fair dealing “but only where there is a ‘special relationship
between the parties arising from elements of public interest, adhesion, and
fiduciary responsibility.’” Wells Fargo Bank v. Ariz. Laborers Local No. 395
Pension Trust Fund, 201 Ariz. 474, 491, ¶ 60 (2002) (quoting Burkons v. Ticor
Title Ins. Co. of Cal., 168 Ariz. 345, 355 (1991)). Our courts have generally
declined to recognize any special relationship between a debtor and
creditor, see McAlister v. Citibank, 171 Ariz. 207, 212 (App. 1992) (holding
bank owed no fiduciary duty to borrower); cf. Stewart v. Phx. Nat’l Bank, 49
Ariz. 34, 44 (1937) (finding special relationship between debtor and creditor
existed only because bank officers and directors had been debtor’s financial
advisors for twenty-three years), and Appellees here do not allege
otherwise.
8 The trial court ruled before trial that Appellees, as guarantors, were
entitled to pursue an offset for the amount of any of Borrower’s claims
against Great Western. See Restatement (First) of Security § 133 (1941) (cited
favorably by Great Am. Ins. v. Fred J. Gallagher Constr. Co., 16 Ariz. App. 479,
480-81 (1972)). Neither party challenges this ruling on appeal.
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GREAT WESTERN v. LJC, et al.
Opinion of the Court
(1970)). Where there is conflicting evidence, we do not substitute our
judgment for the trial court’s and will reverse only where the findings are
clearly erroneous. Id.; Ariz. R. Civ. P. 52(a) (“Findings of fact, whether
based on oral or documentary evidence, shall not be set aside unless clearly
erroneous, and due regard shall be given to the opportunity of the trial
court to judge the credibility of witnesses.”). We therefore review each
contention to determine whether it is supported by substantial evidence in
the record. Visco v. Universal Refuse Removal Co., 11 Ariz. App. 73, 75 (1969)
(citing Bohmfalk v. Vaughan, 89 Ariz. 33, 38 (1960), and Reliable Elec. Co. v.
Clinton Campbell Contractor, Inc., 10 Ariz. App. 371, 374 (1969)).
A. Termination of the Agreement
¶23 Great Western argues the trial court abused its discretion in
finding Great Western breached the Agreement by unilaterally terminating
its obligation to extend financing. Great Western does not dispute it
withdrew from the Agreement, but argues instead it was within its
discretion to do so. Whether a party has breached a contract is a question
of fact. Maleki v. Desert Palms Prof’l Props., L.L.C., 222 Ariz. 327, 333, ¶ 28
(App. 2009) (citing Wells Fargo, 201 Ariz. at 493, ¶¶ 69-70).
¶24 The language of the Agreement authorizes termination only
upon Borrower’s default. It does not grant Great Western authority to
unilaterally withdraw from the Agreement. Great Western did not assert
Borrower had defaulted, and its termination of the Agreement was a direct
violation of its written terms. By definition, Great Western’s actions
constitute a breach of contract, and we find no error.
B. Borrower’s Ability to Perform
¶25 Great Western next argues the trial court erred in finding
Borrower was capable of performing under the Agreement, a necessary
precursor to its conclusion that Great Western committed anticipatory
breach. See Thomas v. Montelucia Villas, L.L.C., 232 Ariz. 92, 95, ¶ 9 (2013)
(requiring the non-breaching party show “‘that he would have been ready
and willing to have performed the contract, if the repudiation had not
occurred’” in order to recover damages for anticipatory repudiation)
(quoting United Cal. Bank, 140 Ariz. at 288-89). Specifically, Great Western
contends that because Borrower had yet to obtain permits for any vertical
construction or to construct an access road required by the City of Flagstaff,
it “was never in a position to build” and was therefore unable to perform.
¶26 The trial court’s finding that Borrower had the ability to
perform its obligations when Great Western breached the Agreement is
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GREAT WESTERN v. LJC, et al.
Opinion of the Court
supported by the record. Great Western withdrew from the Agreement in
early July 2008. It is uncontested that Borrower was current on its payments
for the A&D Loan at least through October 2008. The court was advised
that Great Western’s own construction inspection, undertaken in August
2008, rated Borrower’s progress as “acceptable.” In fact, prior to being
notified of Great Western’s repudiation of the contract, Borrower had
planned to start obtaining building permits toward vertical construction
that same month.
¶27 Great Western points to evidence that the preconditions to
financing were not actually completed until after the Agreement would
have expired. That the project was ultimately delayed when Borrower
purposefully slowed construction in an effort to conserve funds while it
searched for alternate financing does not conclusively establish Borrower
was unable to perform at the time of Great Western’s breach; “the law does
not require the nonbreaching party to do a futile or useless act.” United Cal.
Bank, 140 Ariz. at 283 (citing Kammert Bros. Enters., Inc. v. Tanque Verde Plaza
Co., 102 Ariz. 301, 306 (1967), and Lee v. Nichols, 81 Ariz. 106, 111-12 (1956)).
And, Borrower still had six months before the Agreement expired to
complete any infrastructure required prior to requesting lot-specific loans.
See Kammert Bros., 102 Ariz. at 306 (noting a party generally has the right to
perform at any time during the contract period). Additionally, any
purported concern over Borrower’s ability to perform is belied by the
testimony of Great Western’s vice president, Hupka, who, within the
purview of his task “to manage the risk” for Great Western in its Arizona
market, recommended reinstating the Agreement and extending additional
loans to Borrower immediately post-repudiation and through mid-2009,
believing “[l]ong term, . . . [Borrower] has a good product and location for
the project and should be able to sell enough homes to settle the debt.”
¶28 In light of the conflicting evidence, the trial court acted within
its discretion in concluding Borrower was able to perform at the time of
Great Western’s breach.
C. Extension of the Agreement
¶29 Great Western argues the trial court erred in finding it would
“[m]ore probably than not” have extended the Agreement beyond its stated
term. Great Western contends this finding is merely speculative and
untenable in light of Arizona’s statute of frauds, which prohibits an oral
contract for the extension, renewal, or modification of a loan. See A.R.S.
§ 44-101(9). However, the finding does not “suggest[] there was an oral
agreement or understanding that such an extension would have been
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GREAT WESTERN v. LJC, et al.
Opinion of the Court
granted” as Great Western contends; rather, it reflects the court’s resolution
of the factual issue of what, more probably than not, would have occurred
in the absence of a breach. This fact is relevant to calculating the extent of
Borrower’s damages and properly within the scope of the findings required
of the trial court. See Miller v. Bd. of Supervisors of Pinal Cnty., 175 Ariz. 296,
299 (1993) (noting findings of fact required under Rule 52(a) must be
sufficiently specific and address all pertinent issues).
¶30 The finding is also supported by the evidence. Great Western
acknowledged the opportunity existed to extend the Agreement if it made
business sense to do so. Market reports indicated the Cedar Ridge
development would be successful and profitable and would allow
Borrower to repay its obligations to Great Western. Hupka testified that, if
the development was building and selling homes, “[i]t would make
business sense” to extend the Agreement, and he actively encouraged Great
Western to reinstate the Agreement or offer alternate financing to construct
model homes at Cedar Ridge, even after the Agreement would have
otherwise expired by its own terms in December 2008. From this evidence,
the trial court could reasonably conclude Great Western would have
continued its arrangement with Borrower.
D. Breach of Implied Covenant of Good Faith and Fair Dealing
¶31 Great Western argues the trial court abused its discretion in
finding it breached the implied covenant of good faith and fair dealing by
withdrawing from the Agreement because Borrower could not have had a
reasonable expectation it would receive funding from Great Western in the
absence of a binding obligation to make loans.9 See Bike Fashion, 202 Ariz.
at 423, ¶ 13 (noting the “basic purpose” of contract law and the implied
covenant of good faith and fair dealing is to protect the parties’ reasonable
expectations) (citing 3A Corbin on Contracts § 654 (Lawrence A.
Cunningham & Arthur J. Jacobson eds., Supp. 1999)). “Issues of
reasonableness are generally questions of fact.” In re Estate of Jung, 210 Ariz.
202, 207, ¶ 28 (App. 2005) (citing Trustmark Ins. v. Bank One, Ariz., N.A., 202
Ariz. 535, 541, ¶ 25 (App. 2002)).
9 Although not expressly contained in the record, we presume the trial
court made all findings necessary to sustain the judgment if they are
“reasonably supported by the evidence, and not in conflict with the
[court’s] express findings.” Coronado Co. v. Jacome’s Dep’t Store, Inc., 129
Ariz. 137, 139 (App. 1981).
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GREAT WESTERN v. LJC, et al.
Opinion of the Court
¶32 To accept this argument requires us to accept Great Western’s
overarching premise that when it wrote the Agreement, it did not do so for
the purpose of memorializing an agreement to loan money — a position
belied by the specific language of the Agreement and one which we have
rejected. See Part I supra. Contrary to Great Western’s assertions otherwise,
that Borrower was unable to obtain alternate financing does not illustrate
Great Western’s decision to terminate the agreement to provide financing
was made in good faith. Indeed, by unilaterally terminating the Agreement
six months before it was to expire and depriving Borrower of the ability to
construct homes within the development, Great Western stripped Borrower
of the precise benefit for which it contracted and violated the covenant of
good faith and fair dealing.
¶33 We likewise reject Great Western’s suggestions that: (1) it
acted in a commercially reasonable manner and with Borrower’s best
interest in mind when it terminated the Agreement given the declining
economic conditions and its general concerns regarding the success of then-
existing real estate development projects, and (2) it was authorized to
terminate the Agreement at its pleasure so long as it had a good faith
intention, at the time of execution, to make loans to Borrower. Beyond
being both an incorrect statement of the law, see Wells Fargo, 201 Ariz. at
490, ¶ 59 (stating the “implied covenant of good faith and fair dealing
prohibits a party from doing anything to prevent other parties to the
contract from receiving the benefits and entitlements of the agreement,”
without limiting the obligation to execution of the contract) (emphasis
added), and contrary to the specific language of the agreement, these claims
were raised in this Court for the first time at oral argument and were thus
waived, see Santa Fe Ridge Homeowners’ Ass’n v. Bartschi, 219 Ariz. 391, 398
n.3, ¶ 22 (App. 2008) (citing Mitchell v. Gamble, 207 Ariz. 364, 369-70, ¶ 16
(App. 2004)).
¶34 Alternatively, Great Western argued at oral argument that
since it had decided not to loan Borrower the contracted-for monies, it was
more efficient to repudiate the entire contract at once rather than process,
and reject, applications for funding as they were received. In doing so,
Great Western conflates the issue of whether it would have approved a lot-
specific loan request with that actually presented here — its obligation to
consider requests for funding on a case-by-case basis. The Agreement
specified it was effective until December 2008, and the only basis for
termination was an event of default by Borrower. Hupka agreed it would
be reasonable for Borrower to expect the Agreement to continue until at
least the stated expiration date. That Borrower had not yet requested a loan
under the Agreement is irrelevant; it had an additional six months,
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Opinion of the Court
according to the express terms of the contract, to do so. Great Western’s
arguments that Borrower would not have satisfied the preconditions to
approval are rejected for the same reasons set forth in Part III(B), supra.
And, it can reasonably be inferred, based upon Hupka’s personal and
repeated requests to Great Western to either reinstate the Agreement or
issue new loans to Borrower, that, had Borrower submitted one or more
loan requests, they would have been approved by Great Western had it
dealt with Borrower in good faith.
¶35 In sum, substantial evidence supports the trial court’s implicit
finding that Borrower reasonably expected Great Western to provide
construction financing and its conclusion that Great Western’s failure to do
so violated the implied covenant of good faith and fair dealing.
E. Lost Profits
¶36 Finally, Great Western contends Appellees failed to establish
with reasonable certainty that Borrower lost profits of $2.8 to $3.5 million
as a result of Great Western’s breach of the Agreement. Generally, the non-
breaching party to a loan agreement is entitled to recover an amount that
will reasonably and fairly compensate him for losses resulting from the
breach — the amount that would place him in the same position in which
he would have been had the contract been performed. See Higgins v. Ariz.
Sav. & Loan Ass’n, 90 Ariz. 55, 63-64 (1961) (noting where one party has
broken a contract, damages may amount to what “‘may reasonably be
supposed to have been in the contemplation of both parties at the time they
made the contract’”) (quoting Shurtleff v. Occidental Bldg. & Loan Ass’n, 181
N.W. 374, 376 (Neb. 1921)); Rev. Ariz. Jury Instr. (Civil) Contract 17 (5th ed.
2013). Both the existence and amount of lost profits present questions of
fact which must be proven with reasonable certainty. See Harris Cattle Co.
v. Paradise Motors, Inc., 104 Ariz. 66, 67 (1968); Earle M. Jorgensen Co. v. Tesmer
Mfg. Co., 10 Ariz. App. 445, 450 (1969).
¶37 Regarding lost profits, the trial court concluded:
Had [Great Western] not breached, after payment of the A&D
loan, Borrower would have realized an estimated net profit in
the range of $2,808,000 to $3,500,000. The Court concludes
that the 50 homes would have sold eventually. At a
minimum, Borrower would have been able to sell
approximately half of the homes based on the original
projection of $70,000 net profit per home and the remainder
for at least the revised projection of $42,320 net profit per
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GREAT WESTERN v. LJC, et al.
Opinion of the Court
home. More likely, with Borrower’s ability to reduce
construction costs to lower price, profits would have been on
the higher end of that range.
¶38 Great Western first argues the award of lost profits was
inappropriate because, it contends, the loss was more likely caused by a
declining economy rather than breach of the Agreement. Although this is
a possible explanation, it is one which the trial court rejected in favor of
evidence from Great Western’s own appraiser that home sales in Flagstaff
remained largely consistent through 2009. The record also reflects that
demand for housing in Flagstaff was significant given the limited
availability of land in the area and the lower-cost housing proposed for
Cedar Ridge would fill an underserved niche in the community even in the
down economy. Great Western’s appraiser also concluded Borrower
would have been able to sell at least one home per month in 2009 which
would have been sufficient to service the loans with Great Western. And,
even if Great Western had decided not to extend the Agreement beyond its
expiration in December 2008, Borrower would have been able to build
several model homes in the meantime and enhance its chances of obtaining
alternate financing, thereby mitigating its damages.
¶39 We will not second-guess the trial court’s resolution of
disputed questions of fact where its findings are supported by the record.
See Gen. Elec. Capital Corp. v. Osterkamp, 172 Ariz. 185, 188 (App. 1992) (citing
City of Phx. v. Geyler, 144 Ariz. 323, 329 (1985)). We will certainly not do so
where the findings of the court were based upon the testimony of the
objecting party’s own witnesses.
¶40 Great Western also disputes the trial court’s calculation of lost
profits, arguing: (1) Appellees did not prove Great Western would have
extended the Agreement past its expiration, and therefore, damages should
have been calculated based only upon the number of homes Borrower
could have built between July and December 2008, and (2) Appellees did
not present sufficient evidence for the court to determine how many homes
Borrower would have constructed between July and December 2008. It
contends the court’s conclusion is “wildly speculative,” and that using the
words “eventually” and “more likely” “emphasize[s] the uncertainty of the
situation.”10
10 Great Western also takes issue with the trial court’s use of the words
“would have.” We are unable to discern any meaning from the phrase
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GREAT WESTERN v. LJC, et al.
Opinion of the Court
¶41 This position is untenable in light of the trial court’s factual
findings, as supported by the record and affirmed in ¶¶ 29-30, 38-39, supra,
that Borrower would have been able to sell the homes at a profit in the
favorable Flagstaff market, and Great Western would have acted in its own
best interest by continuing the financing arrangement through to
completion of the project. Moreover, we have long-recognized that
absolute certainty in the amount of damages is not necessary where the fact
of damage is proven, with doubts to be resolved in favor of the non-
breaching party. See Gilmore v. Cohen, 95 Ariz. 34, 36 (1963) (citing Story
Parchment Co. v. Patterson Parchment Paper Co., 272 U.S. 555, 563-64 (1931);
Grummel v. Hollenstein, 90 Ariz. 356, 360 (1962); and Brear v. Klinker Sand &
Gravel Co., 374 P.2d 370, 374 (Wash. 1962)); Restatement (Second) of
Contracts § 352 (1981) (“Doubts are generally resolved against the party in
breach. A party who has, by his breach, forced the injured party to seek
compensation in damages should not be allowed to profit from his breach
where it is established that a significant loss has occurred.”). Reasonable
certainty is therefore provided where there is “some reasonable method of
computing [the] net loss.” Lininger v. Dine Out Corp., 131 Ariz. 160, 163
(App. 1981) (citing Irish v. Mountain States Tel. & Tel. Co., 500 P.2d 151, 154
(Colo. App. 1972)); see also Gilmore, 95 Ariz. at 36 (“[T]he evidence must
make an ‘approximately accurate estimate’ possible.”) (quoting Martin v.
LaFon, 55 Ariz. 196, 199-200 (1940)).
¶42 Again, although there was conflicting evidence presented at
trial as to these issues, we defer to the trial court’s superior position to
weigh the evidence, make credibility determinations, and resolve conflicts
in facts and expert opinions. In re Estate of Pouser, 193 Ariz. 574, 579, ¶ 13
(1999). After making relevant findings of fact, the court articulated a
formula, the use of which Great Western does not dispute, that makes an
“approximately accurate estimate” of the lost profits.11 Nothing more is
required.
other than an affirmative declaration that the events described would, in
fact, have occurred absent Great Western’s breach.
11 To reach the lower end of the range, the trial court added twenty-
five homes multiplied by an anticipated profit of $70,000, to twenty-five
homes multiplied by an anticipated profit of $42,320, for a total of
$2,807,900. To reach the higher end of the range, the court multiplied fifty
homes by an anticipated profit of $70,000, for a total of $3,500,000.
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GREAT WESTERN v. LJC, et al.
Opinion of the Court
CONCLUSION
¶43 The judgment of the trial court is affirmed.
¶44 Both parties request an award of attorneys’ fees on appeal
pursuant to the terms of the A&D Loan and A.R.S. § 12-341.01. As the
prevailing party, Appellees are awarded their reasonable attorneys’ fees
and costs incurred on appeal upon compliance with ARCAP 21(b).
:ama
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